I don’t have much to add beyond what Roderick has already said. One quick clarification about the use of terms, though. In comments, Roderick says:

I’m willing to grant that Ron Paul counts as a libertarian. (I think Charles denies this on the grounds that Paul subordinates liberty to constitutionalism, but I’m happy to grant the label.)

I have argued before that the positions expressed by Ron Paul in his campaign are constitutionalist rather than libertarian. Whether I would call Ron Paul a libertarian or not depends on what is meant by the term. There’s a broad, cluster-concept sort of sense in which Ron Paul could be called a libertarian, and, on some issues, a fairly hard-core libertarian at that. That is, he would fall pretty far towards that corner of the Nolan Chart if you mapped out where he stands on various questions of policy. There’s another sense of libertarianism, which has to do with the ideological reasons that underlie those policy positions — that is to say, a radically individualist theory of justice and political legitimacy, which happens to be incompatible with constitutionalism or any theory that subordinates moral claims for liberty and justice to legalistic proceduralism. To the extent that Ron Paul has been willing to sacrifice libertarian policies for the sake of non-libertarian or anti-libertarian goals, such as a fundamentalist reading of the U.S. Constitution or the so-called rule of law, he must be operating on some theory of political justice other than libertarianism, and so is (in the ideological sense) a Constitutionalist, or a decentralist conservative, or whatever, and not a libertarian. So how happy I am to grant the label depends on how the label is being used in a particular case. There are some reasons, both of temperament and of deliberate rhetorical choice, why I tend to talk about libertarianism in the ideological sense more than I tend to talk about it in the Nolan Chart sense, but I’m certainly happy to grant that Ron Paul has at least as good a claim (often a better claim) to the term libertarian as most of the Libertarian Party, or many of the paradigm cases of libertarians in the mainstream public consciousness.

Hope this helps.

—Rad Geek

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Dang. When I first read through this, I thought, “Wow, someone I agree with.” Then I got to this:

There’s another sense of libertarianism, which has to do with the ideological reasons that underlie those policy positions — that is to say, a radically individualist theory of justice and political legitimacy, which happens to be incompatible with constitutionalism or any theory that subordinates moral claims for liberty and justice to legalistic proceduralism. To the extent that Ron Paul has been willing to sacrifice libertarian policies for the sake of non-libertarian or anti-libertarian goals, such as a fundamentalist reading of the U.S. Constitution or the so-called “rule of law,” he must be operating on some theory of political justice other than libertarianism.

At which point I thought I totally disagreed with you. Then I read your link contrasting quotations by Paul and King, and now I’m just confused. Maybe are just using incompatible terminology. To me “law” has to do with explicit or customary agreements about collective matters and “rule of law” has to do with the adherence to those agreements [with due regard for the context of them] rather than some unconditional intuitions about what is “just.” Under those definitions one would have to be some sort of very simplisitic intuitionist Randroid to not prefer law over justice.

lirelou was explicitly using accordance with the rule of law as a grounds for restricting the decriminalization of immigration, apparently because the restrictions under which immigrants have been suffering up until this point must continue to be enforced, just to be fair, or something. It does seem to me that this is one thing that people sometimes mean when they talk about respect for the rule of law – that is, systematically and carefully enforcing the terms of actually existing laws, whether or not they are just. The idea is that if you refuse to enforce a law based on your substantive disagreement with it, you are corrupting the legal process by inserting arbitrary discretion into what should be an impersonal mechanism. If that is what is meant, then it ought to be clear that the rule of law deserves respect only to the extent that, and in such cases as, the laws being enforced actually are just laws: consistency in justice is a virtue, but consistency in evil is only relentlessness. Where the promulgated law is unjust it should be ignored or defied, as openly, in as many cases, and by as many officials, as possible, since scrupulous enforcement of unjust laws just means scrupulous criminality against the innocent, and to hell with anything that says otherwise.

It may be that you have something different in mind when you say that you respect the rule of law. The phrase is a pretty fluid one, and more than one meaning has been assigned to it. For example, maybe you mean the (perfectly respectable) idea that the grounds for an act of legal force should be public, consistent, and general. Or maybe you mean something else. But if that’s the case, then given the argumentative context in which lirelou was using the phrase, I doubt that (s)he and you mean the same thing by it.

The same criticism applies, mutatis mutandis, when Ron Paul advocates the ongoing criminalization of peaceful immigrants simply because amnesty would reward people who have broken the law. As if there were any virtue in rigorously enforcing an unjust law, or any vice in evading or defying it. Immigration laws are obviously, stupidly tyrannical, and rigorous and aggressive enforcement of a law admittedly incoherent and unfair, in the name of the rule of law, just means tyranny with a powdered wig.

Concerning the law and justice, I believe that there is a natural law that is prior to, and superior in authority to, any positive law. No authority and the requirements of which no agreement, compact, or tradition can make, unmake, or alter it—because it is only through the natural law that agreements, compacts, traditions, etc. can gain any rightful authority in the first place. So in an important sense there can be no choice between law and justice, because no-one has a right to enforce the terms of unjust agreements or traditions, only those that are compatible with justice. Unless agreements conform to prior principles of justice they do not even rise to the level of genuine laws.

There’s a more positivistic sense of law, in which one might say that there are, for example, immigration laws on the books, even though those laws are not binding on anyone and cannot legitimately be enforced. In this broader sense of law, one may be called upon to choose between law and justice. But in that case I find the notion that one might choose law over justice appalling. No-one can ever be bound in conscience to do something which would require violating a part of virtue, and any law, so-called, which imposed an obligation in violation of justice would simply be criminal on its face.

I honestly don’t understand what objection you are trying to raise when you say:

… rule of law has to do with the adherence to those agreements [with due regard for the context of them] rather than some unconditional intuitions about what is just. Under those definitions one would have to be some sort of very simplisitic intuitionist Randroid to not prefer law over justice.

Is this supposed to be an epistemological concern (as the term intuitionist seems to suggest) — i.e., a worry that individual actors will have some kind of trouble discovering what is in fact just, independently of the contents of the law?

Or is it an ethical concern, to the effect that even if you have indeed discovered a law to be unjust, you should still obey and/or enforce the law as it stands, rather than evade or defy or nullify it in the name of intuited principles of justice?

Or is it a logical concern, to the effect that the requirements of justice are somehow derivative of the agreements or traditions from which law emerges, so that laws rather than intuitions define what counts as justice, in such a way that the choice doesn’t really arise?

· February 2008 ·

[…] Spooner says about legal or presidential authority in order to count as a libertarian (in at least some meanings of that term). You don’t even have to agree with what Spooner says about politicking or voting in […]

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